Young v. King

Filing 17

ORDER granting Defendant's 8 Motion to Dismiss and adopting 12 Report and Recommendations of Magistrate Judge Michael T. Parker. Plaintiff's 14 Motion for Hearing is dismissed as moot. Signed by District Judge Keith Starrett on March 27, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
ELLIOT YOUNG, #62346
VS.

CIVIL ACTION NO. 2:11cv147-KS-MTP

RONALD KING

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition of Elliot Young for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254 [1], and Respondents’ Motion to Dismiss
pursuant to 2244(d) [8]. The Petitioner has filed an Objection [13] to the Report and
Recommendation and the Court has considered the above documents, together with
the record in this case and the applicable law and finds that the Respondent’s Motion to
Dismiss [8] should be granted and that the Petition should be dismissed with prejudice.
1. PROCEDURAL HISTORY
On or about October 4, 2007, Petitioner was convicted of two counts of the unlawful sale of
cocaine in the Circuit Court of Walthall County, Mississippi, Cause Number 2006-84, and was
sentenced on October 8, 2007, as a habitual offender to two life sentences without the possibility
of parole. See Ex. A to Motion [8-1]. Petitioner appealed his conviction and sentence to the
Mississippi Supreme Court, and the Mississippi Court of Appeals affirmed the trial court’s
judgment on March 10, 2009; Petitioner’s motion for rehearing was denied on July 28, 2009.
See Young v. State, 13 So. 3d 339 (Miss. Ct. App. 2009); Ex. B to Motion [8-2]. Based on the
information available, Petitioner did not file a petition for writ of certiorari with the Mississippi

Supreme Court.1
Petitioner filed a motion for leave to file a motion for post-conviction collateral relief in
the Mississippi Supreme Court on or about August 27, 2010.2 The Mississippi Supreme Court
denied the motion on September 29, 2010.3 Petitioner sought certiorari review of the state
court’s ruling in the United States Supreme Court, which was denied by order filed January 31,
2011.4
Petitioner submitted his federal Petition for Writ of Habeas Corpus [1] on or about July
14, 2011. The Respondent contends that Petitioner’s Petition was not timely filed and that it
should be dismissed.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to
“make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See
also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made.”) Such
review means that this Court will examine the entire record and will make an
independent assessment of the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37,

1

Petitioner has not identified or mentioned such a petition in his pleadings and the official
website for the Mississippi Supreme Court does not reveal one. See http://courts.ms.gov/
appellate_courts/generaldocket.html (last visited Feb. 2, 2012).
2

See Ex. C to Motion [8-3].

3

See Ex. D to Motion [8-4].

4

See Ex. E to Motion [8-5].

40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general
in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997).
No factual objection is raised when a petitioner merely reurges arguments contained in
the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
In his objections (styled “Petition for Rehearing”), Petitioner relates that the law
library is inadequate and that the one year statute of limitations should not apply to him
because of his inadequate training and his lack of ability to access legal assistance. He
also argues that the recanting witness, Mr. Cook, should be examined by the Court.
However, Petitioner never addresses the findings in the Report and Recommendation
that the one year statute of limitations has run. He also does not address the issue of
equitable tolling, other than to say that he was prevented from timely filing documents
because of his lack of training and an inadequate law library.
The Court has considered the Report and Recommendation and the application
of the Antiterrorism and Effective Death Penalty Act (AEDPA) by the Magistrate Judge.
It is clear from the record that the one year statute of limitations has run and that there
is no justification for equitable tolling.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent
review of the entire record and a de novo review of the matters raised by the objections.
For the reasons set forth above, this Court concludes that Young’s objections lack merit
and should be overruled. The Court further concludes that the Report and
Recommendation is an accurate statement of the facts and the correct analysis of the

law in all regards. Therefore, the Court accepts, approves and adopts the Magistrate
Judge’s factual findings and legal conclusions contained in the Report and
Recommendation. Accordingly, it is ordered that the United States Magistrate Judge
Michael T. Parker’s Report and Recommendation is accepted pursuant to 28 U.S.C. §
636(b)(1) and that Elliot Young’s claim is dismissed with prejudice. The pending
Motion for Hearing [14] is dismissed as moot.
SO ORDERED this, the 27th day of March , 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE